This is my question. Having no formal training in law, I'm hoping someone can answer this one for me. Wasn't the ruling based on substantive due process? Isn't this anti-originalism? And aren't Thomas and Scalia two of the biggest proponents of originalism? How are they reconciling that view with this decision?

Very good thread idea. I haven't read the text of that case yet, so this gives me a good excuse. Statistically speaking though, you can probably just replace my pending response with whatever Stevens wrote in his dissent._________________All our final decisions are made in a state of mind that is not going to last. - Marky Mark Proust

i am also not a lawyer, and am not even going to attempt to read the text of the ruling, but it's my observation that, while scalia and thomas claim to be originalists, they tends to be lip service. much like roberts' claim that judges are just like umpires, calling balls and strikes, and the claim of conservative republicans that they are strongly opposed to judicial activism.

but what i get from various commentary is that the court's logic was based on a person's right to self-defense, which does seem rather contrary to the whole thing about militias, in the constitution._________________aka: neverscared!

Wasn't the ruling based on substantive due process? Isn't this anti-originalism? And aren't Thomas and Scalia two of the biggest proponents of originalism? How are they reconciling that view with this decision?

I don't see why they would have to reconcile anything, even though technically, they are incorporating the 2nd amendment into the 14th, sort of, Scalia kept on hammering the word "fundamental right" whenever "right to bear arms" are involved. I don't know how this would not count as "originalism", since it would seem more like the 14th amendment is reinforcing the 2nd in Scalia's mind.

Well, that being said, I better go study up on "Due process", since I didn't even know that there's a legal difference between "due process" and "privileges and immunities" and what each is supposed to mean... seriously, law speak, wtf?

This is my question. Having no formal training in law, I'm hoping someone can answer this one for me. Wasn't the ruling based on substantive due process? Isn't this anti-originalism? And aren't Thomas and Scalia two of the biggest proponents of originalism? How are they reconciling that view with this decision?

They are. Scalia says he acquiesced because the majorities' argument is based in a crapload of settled law and is narrowly limited in its application, so it gets the right result with minimum fuss. Thomas wrote a separate opinion saying he disagrees with incorporating via the due process clause, and thinks they should use the "rights and privileges" clause instead. So he sticks to his guns a little better.

Reading through it, this is a really interesting case. In my lay opinion, it casts a pretty stark light on the fact that the majority decided ahead of time how they needed to rule, and then scrambled for a legal basis put put underneath. If they really want to incorporate the bill of rights itself as the definitive basis for "liberty" estimations, then thomas and stevens are right that they should just use the privileges clause... but they don't, because doing so would throw a giant fucking monkey wrench into the nation's legal machinery and shit would explode, and they don't want to be responsible for that. On the other hand, going a Stevens route is ruled out because if you don't directly attach your "right" to bear arms to the etched-in-stone 2nd amendment, then it's liable to be downright outlawed anywhere (just show it's not a constitutive element of liberty at the local level). So what's left? Gerrymander the due process clause to incorporate bill of rights amendments according to their historical relation to a "sense of liberty," which is bullshit. not only are they using anti-originalist substantive due process claims to hold it up, they're interpreting the substantive element of due process to mean "any fucking substantive liberty claim regardless of its relation to process."

and then you wanna talk about states rights vs federal authority? jeebus._________________All our final decisions are made in a state of mind that is not going to last. - Marky Mark Proust

[...]To illustrate this phenomenon, imagine explaining the result of the case in a different way. After stating the basic holding that the Second Amendment is incorporated, someone responds, “Interesting. How is it incorporated?” The answer to that question reveals the paradox.

Is it incorporated through the Due Process Clause? Well, no, it’s not, as a majority of the Justices concluded that the Due Process Clause does not incorporate the Second Amendment. The four dissenters (in two separate opinions) rejected the right as fundamental under Duncan v. Louisiana (1968). Justice Thomas, in his separate concurrence, rejected Due Process incorporation for non-procedural rights altogether. To be sure, the four plurality Justices believed that the Due Process Clause incorporated the Second Amendment, but they were in the five-four minority on this point.

Is it incorporated through the Privileges or Immunities Clause? Again, no, it’s not, as a majority of the Justices rejected that claim as well. The plurality of four refused to revisit the Slaughter-House Cases (1873) or United States v. Cruikshank (1876) (on the Privileges or Immunities question), and the four dissenters also rejected this claim. Only Justice Thomas endorsed overturning Slaughter-House and reinvigorating the Privileges or Immunities Clause as the mechanism for incorporation. However, he was in the eight-one minority on this issue.

Thus, even though, as we all now know, the Second Amendment is in fact incorporated against state and local governments, a majority of the Court rejected incorporating it through the Due Process Clause and a majority of the Court rejected incorporating it through the Privileges or Immunities Clause.[...]

_________________“Yields falsehood when preceded by its quotation”
yields falsehood when preceded by its quotation.

Thank you for posting that, I was really wondering how that worked as far as setting a "new" precedent. I figured there was probably some protocol making the majority justification within the majority yes/no voting block the default "on the books" precedent... but that seemed obviously less than ideal.

Interesting that officially it's every bit as screwed up as it looks._________________All our final decisions are made in a state of mind that is not going to last. - Marky Mark Proust

IANAL, but I strongly suspect the real answer is the extremely unsatisfying "this sets precedent as far as incorporation but sets no usable precedent regarding means of incorporation" _________________“Yields falsehood when preceded by its quotation”
yields falsehood when preceded by its quotation.

Nathan will soon be researching Citizens United, so if anybody wants to participate in this week's Scotus Club discussion, feel free to start perusing the decisions. Additionally, I've been using a firefox extension called "zotero" for keeping track of these types of projects and so far it seems to work well enough, but does anybody else have a favorite resource-aggregator I would be wise to check out? Caveat: It must be <= 0 dollars, and preferably work on both mac and pc.

Regards,
N_________________All our final decisions are made in a state of mind that is not going to last. - Marky Mark Proust

There are a lot of issues with the questioning of children that I find problematic. In the early 90s a husband and wife team developed what's now called the Miami method, and which was later found to induce affirmations of criminal conduct and increase false memory creation... After dozens of cases had used the method and several men, boys and parents were falsely accused and sentenced.

Precautions have to be taken with regards to how kids are questioned, how long they're questioned, and whether questions are repeated. Children are easily intimidated, they tend toward what we call an 'affirmation' or 'yes' bias (they literally answer 'yes' more often than 'no' to questions to which they don't know the answer), and they will change their answers, seeking the 'right' one - the one that makes the police officer/interviewer/social worker/teacher happy.

It's an incredibly tough area, and I think it's important to recognize that law enforcement can't even avoid tainting eye witness testimony from adults, so extra layers of precaution protect both kids and the accused._________________"Worse comes to worst, my people come first, but my tribe lives on every country on earth. I’ll do anything to protect them from hurt, the human race is what I serve." - Baba Brinkman